Introduction

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody

This paper demonstrates how legal processes utilized by institutions established to reverse the effects of colonization, can continue the colonizing agenda. The processes reflect 'deep' rather than 'de-'colonizing practices. The Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC), which tabled its National Report over a decade ago and which was heralded as the inquiry which would transform race politics for Indigenous Australians, is used as an example of a 'decolonizing' institution that inadvertently adopted deep colonizing practices. Using data from interviews with 48 Indigenous and non-Indigenous people who were associated with the RCIADIC, this paper expands Deborah Bird Rose's theoretical construct of 'deep colonizing practices' and illustrates how difficult it is to shift hegemonic legal processes and beliefs, despite intentions to empower and embrace Indigenous views.     

Colonialism and the health transition: Aboriginal Australians and poor whites compared, Victoria, 1850–1985

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

Frauds and fakes in the Australian aboriginal art market

This article examines the topic of problematic art in the Australian Aboriginal art market. For Aboriginal people art plays an important social, economic and political role. It has also become a major source of income for many. Thus when the integrity of that art is challenged by allegations of fraud and deception it is imperative to explore the veracity of these claims and the responses made to them. In the article particular attention is devoted to those responses made through both the Australian criminal and civil systems of justice. This analysis shows that there are special problems associated with establishing the authenticity of Aboriginal works of art which tend to hamper the prosecution of fraud cases while a dearth of expertise and interest in art fraud at large among Australian law enforcement bodies is a further barrier to effective action. The conclusion is reached that at present the Australian legal system is poorly equipped to deal with frauds and fakes in the Indigenous art market—a situation which will take time and more imaginative solutions to remedy.     

Elder abuse and neglect: challenges and directions for legal reform

The last two decades have heralded an increased community and professional awareness of the phenomenon of elder abuse and the challenges it poses to the enjoyment of the human rights of some older people. The contemporary Australian legal system provides many of the components of a framework required to assist in the promotion of the rights of the elderly and in the prevention and remedy of elder abuse. This framework acts in concert with health and community services dedicated to the advancement of health and wellbeing into old age. In the future, the acknowledgment and adoption of international legal principles which are directed to the needs of the elderly, the reform of existing domestic legislation and the development of new elder-specific statutes may all impact upon the incidence and consequences of elder abuse. To date, no Australian jurisdiction has adopted a legislative regime targeted specifically at the issues confronting older Australians who may be vulnerable to abuse and neglect. This column looks at some of the options for legal reform in this area.     

Australian Aboriginal Property Rights as Issues of Indigenous Sovereignty and Citizenship

Aboriginal Australians have traditionally enjoyed little protection from the law. The matter of land has been at the heart of white settler/Aboriginal relations since the nation was first founded. It is only recently that recognition has been given to the land rights of Australian indigenous people. This recognition was finally made at the property law level in 1992 through the High Court decision in Mabo v. Queensland (n. 2) ([1992] 175 CLR 1). The 1993 High Court decision in The Wik Peoples v. Queensland ([1996] 71 ALJR 173) reinforced that recognition. It did so through the principle that pastoral lessees' and native title holders' rights might co-exist except that, in the event of any inconsistency, the pastoralists' rights were to prevail, provided pastoral activity was being pursued. The most recent legal change is the parliamentary revision of the Native Title Act so that the Wik co-existence principle was put to rest, mainly through permitting the State governments to upgrade pastoral holdings to a form of freehold, thus immunising them from native title claims, and minimising the payment of compensation. In this paper we argue that the country must consider what has been lost in this about-turn from the recognition of native title to land in Mabo . We argue that the nation must consider the emphases in the Mabo judgments upon the significance of international law and the need for the common law not to be locked into a racist past. From that point, we contend for the need to recognise not only native title to land but what lies beyond that: indigenous political and human rights.     

Authorship,Authenticity, and Intellectual Property in Australian Aboriginal Art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists' relationship different to other artists' individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006-8.     

Informal powers and the removal of Aboriginal children: Consequences for health and social order

Current high levels of morbidity and mortality, and high rates of incarceration among Australian Aboriginal populations are related historically to the attempted separation of Aboriginal people from family and community. The paper discusses these events through an analysis of legal and extra-legal forms of power in the late 19th century in Victoria, and through an analysis of the workings of the informal powers of administrators and mission superintendents, within a broader framework of liberal political reason.     

Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: can an intercultural form of restorative justice make a difference?

Aboriginal youth with Foetal Alcohol Spectrum Disorder (FASD) are overrepresented in the justice system. FASD results from prenatal alcohol exposure, and may lead to cognitive, social and behavioural difficulties that increase susceptibility to contact with the justice system. This paper explores the potential contribution of restorative justice in creating diversionary options for Aboriginal youth with FASD, and related cognitive impairments, to prevent enmeshment in the justice system. The lesson from work in Australia and New Zealand is that restorative justice and Indigenous justice are different, but not irreconcilable, projects. We suggest that there is the potential for creating rich intercultural engagement spaces ‘in between’ restorative practices and Indigenous processes: provided that restorative justice – as an essentially Eurocentric paradigm of the Global North – does not attempt to colonise Indigenous justice. An appropriate model would have Aboriginal people engaged in the planning and management of diversionary options, with greater focus on diversion into place-based, Aboriginal owned and managed services. Restorative justice needs to engage with the historical demands of Indigenous peoples for their land and their way of life; though constantly imperilled by forces of neo-liberalism and colonialism, Indigenous peoples remain resilient and provide a vision of an alternative to Euro-modernity.     

Studies document gender differences in HIV risk and impact

According to new studies, women account for half the new HIV infections in Aboriginal people, and women who inject drugs are at higher risk than their male counterparts.     

Mentally ill offenders eligible for diversion at local court in New South Wales (NSW), Australia: factors associated with initially successful diversion

Diversion away from the criminal justice system and into mental health treatment services is a key strategy for addressing the well-established burden of mental illness suffered by those presenting to court. While mental health courts, court liaison and court diversion services have been developed in many jurisdictions internationally, there is limited research evidence to support their effectiveness in identifying those with mental health need and achieving successful diversion. The Statewide Community and Court Liaison Service in New South Wales, Australia, identifies mentally ill offenders likely to meet legal eligibility criteria for diversion at the busiest local courts across the state. Utilising data collected by mental health clinicians working in the service, 8317 individuals were identified as being eligible for court diversion on at least one occasion during the study period (1 July 2008 and the 30 June 2015) and 57.3% were subsequently diverted by Magistrates. Successful diversion at this first step was associated with being female, older, of non-Aboriginal and/or Torres Strait Islander background, and having a serious mental illness, replicated when stratified by sex and by Aboriginal and/or Torres Strait Islander background. There may be barriers to mental health diversion at court for individuals with particular socio-demographic characteristics which future service developments may need to take into account.     

The role of law in public health preparedness: opportunities and challenges

We report the results of a study designed to assess and evaluate how the law shapes the public health system's preparedness activities. Based on 144 qualitative interviews conducted in nine states, we used a model that compared the objective legal environment with how practitioners perceived the laws. Most local public health and emergency management professionals relied on what they perceived the legal environment to be rather than on an adequate understanding of the objective legal requirements. Major reasons for the gap include the lack of legal training for local practitioners and the difficulty of obtaining clarification and consistent legal advice regarding public health preparedness. Narrowing the gap would most likely improve preparedness outcomes. We conclude that there are serious deficiencies in legal preparedness that can undermine effective responses to public health emergencies. Correcting the lack of legal knowledge, coupled with eliminating delays in resolving legal issues and questions during public health emergencies, could have measurable consequences on reducing morbidity and mortality.     

Seen but not heard: Native people in four Canadian inner cities

This essay provides an overview of research on Native people in the inner core of four cities. This research was funded by the Aboriginal Justice Directorate, Department of Justice as part of the Aboriginal Justice Initiative. The objective of the research was to elicit information along a number of dimensions including: background, coming to the city, life in the city, experiences with the criminal justice system, and aspirations for the future. The information was used to compare east/west differences in Aboriginal incarceration levels, to explore urban and rural/reserve offences, and social stratification within the inner-city population. The findings revealed that social stratification exists in the inner-city Native population and that the more marginal the position, the greater the involvement with the criminal justice system. The findings also showed the relationship between childhood and adult experiences. East/west variation in Native incarceration levels can be explained by the findings that more people in the west belonged to the most marginal group in terms of education, employment, skills, and childhood disruption and violence. The findings argue for policy and program attention to be directed to those whose needs are greatest. When ‘broad brush’ solutions are applied, those with the most and least needs are treated equally. This essay is an overview of research contained in a three part volume,Seen but not Heard: Native people in the Inner City. Ottawa: Justice Canada. The views expressed are solely those of the author and do not necessarily reflect the views of Justice Canada or of the people involved in the project.     

The Hermeneutics of Jurisdiction in a Public Health Emergency in Canada

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed reforms to the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue (political and collective matter) while taking into account s. 7 of the Canadian Charter (individual rights). It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health.     

Geographic Variation in Zygomaxillary Suture Morphology and its Use in Ancestry Estimation

Angled/curved zygomaxillary suture coding is widely employed in cranial assessments of ancestry. However, the efficacy of this method has not been extensively evaluated across diverse populations. In this study, zygomaxillary suture morphology was assessed on a total of 411 human crania from six populations (European, Native American, African, Asian, Arctic Circle, and Aboriginal Australian) using a novel 3D coordinate landmark method. Our results indicate a predominance of angled sutures among native peoples of the Arctic and North America (85–86%), a prevalence of curved sutures among Africans and Aboriginal Australians (77–81%), and essentially equal proportions of both configurations in Asians and Europeans (50–56%). Statistically, angled/curved coding generally discriminates poorly between groups, except when populations with antithetically high frequencies of the two configurations (e.g., African vs. Native American) are compared. Moreover, comparisons across previous studies reveal conflicting frequencies for many populations, further suggesting limited utility of this trait in ancestry estimation.     

Some Issues in Aboriginal Justice Research:

The over-representation of Aboriginal people in the Canadian criminal justice system is the context within which the particular case of Aboriginal women is explored. This paper provides an explanation for the incidence and types of crime of Aboriginal women in order to identify the need to better understand the theoretical and methodological issues in the relationship of Aboriginal people to the broader society, in general, and to the criminal justice system is particular.     

Social and legal alienation: The case of aboriginal peoples in Canada

The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’ arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth. In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies, including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression.     

Law and the middle class

This paper draws upon ethnographic evidence from a suburb of New York City to address the relationship between social class and the use of law. In the community studied, middle-class people are less likely than working-class people to complain to legal officials about the conduct of their personal associates such as relatives and neighbors. It appears that the greater transiency and atomization of middle-class people militate against their use of law by reducing the amount of negative information antagonists have about one another and by making avoidance a more attractive means of conflict management. Beyond this, the higher social status of middle-class people itself seems to result in a greater reluctance to use law in personal matters: Because they are generally equal or superior to legal officials in social standing, middle-class people are less willing than lower-status people to submit to their judgment. In light of this, it may be necessary to qualify the prevailing view that higher-status people have a greater propensity to use law as a means of conflict management. Where personal matters among themselves are concerned, the opposite may be the truth.An earlier version of this paper was presented at the Annual Meeting of the Law and Society Association, Madison, Wisconsin, June 1980. For commenting upon various aspects of the work presented here, I would like to thank Donald Black, Kai Erikson, Sally Engle Merry, Frank Romo, Susan S. Silbey, and Stanton Wheeler.     

Returning to the Past: The South Australian Colonisation Commission,the Colonial Office and Aboriginal Title

In the closing decades of the twentieth century many scholars sought to both address and redress the ways in which indigenous people's rights in land had been treated historically by colonisers in Anglophone settler societies. More recently, this work has been criticised by a new generation of legal historians who have sought to delineate more carefully the role that the law actually played in the treatment of aboriginal title in the past. In keeping with the latter approach, this article seeks to recover the manner in which the indigenous people's interests in land were treated in the British colony of South Australia at the time it was founded in the early-to-mid nineteenth century. It emphasises the manner in which the colonisers, the South Australian Colonisation Commission, rather than the British Colonial Office, deployed a range of legal arguments, especially in the context of political negotiations between these two parties. It concludes that the imperial government's treatment of indigenous interests in land was primarily determined by its perception of the relationships of power on the ground between the colonial state, the settlers and the Aboriginal people rather than by its application of any particular legal principle or norm.